State v. Rosa

• Citation: 170 Conn. 417,365 A.2d 1135
• Parties: STATE of Connecticut v. Jose Miguel ROSA.
• Decision Date: 23 March 1976
• Court: Connecticut Supreme Court

Page 1135

365 A.2d 1135

170 Conn. 417

STATE of Connecticut v. Jose Miguel ROSA.

Supreme Court of Connecticut.

March 23, 1976.

Certiorari Denied Oct. 4, 1976. See 97 S.Ct. 126.

Maxwell Heiman, Sp. Public Defender, with whom, on the brief, were Louis P. Kocsis, Stamford, and William J. Eddy, Bristol, for appellant (defendant).

Arnold M. Schwolsky, Asst. State's Atty., with whom, on the brief, was George D. Stoughton, State's Atty. for appellee (state).

Before HOUSE, C.J., and COTTER, LOISELLE, BOGDANSKI and BARBER, JJ.

COTTER, Associate Justice.

The defendant has appealed, after trial by a jury, from his conviction of murder of Luis Rios Moran while acting with one or more persons in committing or attempting to commit robbery, in violation of then § 53a-54(a)(2) of the General Statutes. We consider his assignments of error in rulings made during the trial and in the charge to the jury. ¹

I

From a review of the evidence the jury could have reasonably found the following facts:

On August 9, 1973, between 10:00 and 11:30 p.m., the decedent and the defendant had been gambling with dice and cards in the decedent's apartment on Main Street in Hartford. Also present at that game were a neighbor of the decedent, Benjamin Morales, and a friend of the defendant, Lydia Sanchez, also known as Carmen. During the course of the game, the decedent succeeded in winning all of the defendant's money, and when Morales left the other three at the apartment between 11:15 and 11:30 p.m., Moran was still alive.

The next morning, August 10, 1973, after some people had begun to ask after the decedent, neighbors investigated and found him lying dead on the bed in his apartment, with one of his pockets turned inside out, and a bloody lead pipe lying not far from his body. An autopsy revealed that death had been caused by severe multiple blows to the head, apparently from the lead pipe.

Subsequently, on August 13, 1973, Carmen Sanchez's 21-year-old son, Victor Millan, saw his mother and the defendant in an apartment in Newburgh, New York. Millan on that occasion accompanied the defendant to a garage where Rosa told Millan that he had hit the decedent with a lead pipe and taken his money. Later that evening, Rosa, Millan and Carmen Sanchez, along with her daughter, returned to Carmen Sanchez's apartment on Bedford Street in Hartford. While in the apartment, Millan heard Rosa tell Mrs. Sanchez that she had had nothing to do with what had happened but that 'perhaps the police might catch you . . . and you might say something that you're not supposed to say.' Later that night the defendant again told Millan that he had quarreled with Moran, taken the pipe and hit him over the head, but denied that Moran was dead when he left the apartment.

Several hours later, at about 3:30 a.m. on August 14, 1973, the defendant persuaded Millan and a friend to drive him back to Newburgh, which they did, dropped him off, and then returned to Hartford. Later that day, Millan went to the Hartford police and related what Rosa had told him.

The next day, August 15, 1973, Millan accompanied two Hartford police officers back to Newburgh, where they arrested the defendant at a gas station sometime after 3 p.m. The defendant, during the time he was in Newburgh, was taken to the police station and then to court, where he was advised by the judge that he had a right to counsel and to remain silent and was urged by the judge not to say anything. Since the defendant did not understand much English, one of the Hartford policemen, Pedro J. Velazco, translated the court's warning into Spanish for him. After the court proceedings, he was taken back to the Newburgh police station, where he remained overnight.

In the course of the trial, the court, in the absence of the jury, heard evidence concerning the admissibility of a written confession which had been given later that night at the Newburgh police station by the defendant in Spanish and translated into English by Officer Velazco to a stenographer. The evidence taken during the hearing on the motion to suppress this confession disclosed the following:

At 8:40 p.m., four hours after the court hearing, the defendant told Officer Velazco that he was ready to make a formal statement. The officer thereupon read appropriate warnings to him both in English and in Spanish from a printed sheet used by the Newburgh police, which sheet the defendant signed. ² The defendant then gave his statement in Spanish to Officer Velazco, who in turn translated it to a Newburgh police officer, who typed it up in English. At one point during the statement, the defendant rose from his seat and gestured in a manner similar to a baseball batter hitting a ball. When the statement was completed, it was read back to him in Spanish, he corrected some names and dates, initialled those changes, and then signed all the pages of the statement.

In open court, when ruling on the motion to suppress the written signed confession, the court stated that it was 'required to suppress the confession, not based upon' the credibility or truthfulness of the accused and the police officers, 'but based on the procedure employed in the taking of the statement.' After discussing only the events and details of the translation process the court concluded: '(T)he procedure adopted in the taking of the confession has the appearance and the opportunity of impropriety and not the fairness which an accused is entitled to expect and receive in criminal proceedings,' noting in particular the defendant's inability to speak or read the English language and the failure by the police to provide an 'impartial interpreter' to assist the defendant.

Evidence concerning all subsequent events was heard by the jury, and revealed that after the defendant's written confession was made, the two Hartford policemen returned Carmen Sanchez to her Hartford apartment. They returned to Newburgh the next day, at which time the defendant was presented in another court in Goshen, New York, for extradition, and then turned over to the custody of the two Hartford policemen. That afternoon, the three started back towards Hartford, stopping at a restaurant for lunch on the way. The two officers were riding in the front, and the defendant, unmanacled, was in the back seat. At about 5:30 p.m., while en route, the defendant initiated a conversation with Officer Velazco in Spanish in the course of which he asked what had happened to Carmen Sanchez and was told that she had been returned to Hartford the previous evening and that she had not been arrested. ³ At this point, according to Officer Velazco, the defendant volunteered that 'he wanted to tell me the truth now and that he told me that he had acted alone in the apartment with Luis Moran but it only had been because of the insistence of Carmen Rivera Sanchez. . . . He told me that she had been making signs behind Luis Moran's back for him to hit him over the head and take his money, by whispers and signs.' The defendant said that he hit Moran with the pipe, took $187, ran down the stairs and drove off to Newburgh with Carmen Sanchez. This oral statement was translated by Officer Velazco from Spanish into English for his fellow officer. Carmen Sanchez did not testify, even though she was apparently available to do so provided she was granted immunity, and the defendant did not testify on his own behalf during the defense's case-in-chief. ⁴

II

The defendant claims the trial court erred in ruling (1) that the defendant's oral statement made en route to Hartford was admissible, and (2) that the state's attorney could state in his closing argument that the defendant had fled when defense counsel's closing had made no reference to flight. We find no error in the court's rulings on these issues.

A

The defendant challenges the admissibility of his oral confession to Officer Velazco, claiming that it was taken under similar circumstances as the written confession, which the court suppressed, and thus should have been excluded as a direct product of that earlier statement.

The trial transcript clearly indicates, as the trial court ruled, that the oral confession the defendant made while riding back to Hartford was voluntary in view of the totality of the circumstances, State v. Hassett,155 Conn. 225, 230, 230 A.2d 553; State v. Traub, 151 Conn. 246, 196 a.2d 755, cert. denied, 377 U.S. 960, 84 S.Ct. 1637, 12 L.Ed.2d 503; Krooner v. State, 137 Conn. 58, 61, 75 A.2d 51. 'The state of mind which renders such a statement involuntary and hence inadmissible is that induced by mistreatment, threats, promises, physical or mental abuse which deprives an otherwise rational mind of the exercise of its free will and powers of decision and discernment.' State v. Cooper, 10 N.J. 532, 552, 92 A.2d 786, 796. See 3 Wharton, Criminal Evidence (13th Ed. Torcia) § 671; annot., 23 A.L.R.2d 919, 921; McCormick, Evidence (2d Ed.) § 149(c).

The record in this case is devoid of any indication that the defendant was subjected to this sort of coercion or intimidation either while he was riding back to Hartford or at any other time while he was in police custody. It is apparent that he volunteered the incriminating statement to Officer Velazco after being told, in response to his inquiry, that Carmen Sanchez had denied and complicity in the killing and after it appeared to him that he might be the only one taking the blame. Thus the trial court was correct in finding the defendant's oral confession to be a voluntary utterance and in admitting Officer Velazco's testimony.

The defendant claims, however, that his oral confession should have been suppressed, regardless of its voluntary nature. He argues that he 'let the cat out of the bag' by his written confession at the police station, that his subsequent oral confession in the car was taken under similar circumstances and that it should have been excluded as the product of the earlier written confession...